(July
1998)
New U.S. Supreme Court Rulings on Sexual Harassment
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Immediate
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All employers
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| On June 26, 1998, the U.S. Supreme
Court ruled that companies will be liable for sexual harassment
committed by supervisors, even if the company’s officials
knew nothing about it. |
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However, the Court also held that
where the victimized employee suffered no loss of tangible job
benefits, companies will be permitted to present an affirmative
defense, consisting of two prongs:
(A) the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and
(B) that the victimized employee unreasonably failed to take advantage
of any preventive or corrective opportunities. |
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In two rulings issued on the same
day, the U.S. Supreme Court has made sexual harassment suits
an even bigger target for plaintiff’s lawyers. However,
the rulings also provided employers with some solid guidance
on dealing with harassment issues—and a potential defense
to some types of these claims. As a general principle, an employer
will be legally responsible for the actions of its agents (including
supervisors), since it is through these people that the employer
carries out its authority. When a supervisor fires an employee,
the supervisor is doing what s/he is authorized to do. It is
an act of the company, regardless of the intent behind it. Therefore,
when a supervisor causes an employee to suffer a loss of tangible
job benefits (termination, pay cut, demotion, undesirable reassignment,
etc.) as a result of the supervisor’s sexual harassment
of the employee, the company will be held legally responsible
for the damages suffered.
However, the Court ruled that where the victimized employee suffered
no loss of tangible job benefits, the company will be permitted
to assert the above-mentioned, two-pronged affirmative defense.
To establish that it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, the Court suggested that
an employer would need to prove that it informed all employees
of: (1) their right to raise and (2) how to raise the issue of
harassment. This should include an effective complaint procedure
that encourages victims to come forward without having to complain
first to the offending supervisor. The employer would also need
to prove that it had the ability to investigate and appropriately
resolve all such complaints in a prompt and effective manner. California
law already requires employers to do this. The second prong of
the defense places an obligation on the complaining employee, who
has an obligation to use such means as are reasonable under the
circumstances to avoid or minimize harm. This means that if the
employer has a proven, effective mechanism for reporting and resolving
such complaints, and the victim unreasonably fails to take advantage
of this, then the plaintiff will not be entitled to recover for
damages that her own actions could have avoided. |
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| The clear message of the Court
is that merely paying “lip service” to anti-harassment
policies will get an employer nowhere. Employers need to review
their harassment policies carefully to be sure that they meet
the current legal requirements. A complaint procedure should
be established that encourages employees to raise their concerns
to someone who is trained and prepared to respond to such complaints
appropriately. The policies should be disseminated to all employees.
Supervisors should be trained regarding their responsibilities
regarding a harassment-free environment, and how to properly
handle any complaints brought to their attention. All non-supervisory
employees should receive training about the harassment policy
and complaint procedures, so that none can claim ignorance or
intimidation about seeking relief within the company. When any
hint of trouble appears, management needs to take swift and appropriate
action (being careful not to overreact). These cases have generated
substantial publicity—and enthusiasm among lawyers interested
in bringing harassment suits. Any employer who fails to be proactive
regarding harassment may find itself stripped of the only meaningful
defense the Supreme Court has offered to date regarding claims
of supervisory sexual harassment. Communication and training
is now more essential than ever. |
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